Getting Nowhere: Florida's Failed Choice of Law Approach

Florida A & M University Law ReviewVolume 8Number 1 The Rule of Law in an Age of ConstitutionalUncertainty

Article 4

Fall 2012

Getting Nowhere: Florida's Failed Choice of LawApproach to Torts and a Proposal for ChangeShirley A. Wiegand

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Recommended CitationShirley A. Wiegand, Getting Nowhere: Florida's Failed Choice of Law Approach to Torts and a Proposal for Change, 8 Fla. A&M U. L. Rev.(2012).Available at: http://commons.law.famu.edu/famulawreview/vol8/iss1/4

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GETTING NOWHERE:

FLORIDA'S FAILED CHOICE OF LAW

APPROACH TO TORTS AND A

PROPOSAL FOR CHANGE

Shirley A. Wiegand*

TABLE OF CONTENTS

I. INTRODUCTION ............................................ 2II. CHOOSING FLEXIBILITY OVER PREDICTABILITY .............. 3

III. RE-STATING THE LAW ..................................... 6IV. FLORIDA'S EXPERIENCE WITH THE RESTATEMENT (SECOND). 8V. A NEW APPROACH......................................... 11

VI. THE RULE OF THE COMMON DOMICILE ...................... 13A. Car and Plane Accidents.............................. 16B. Other Common Domicile Cases ....................... 21

VII. SPLIT DOMICILE CASES.................................... 21A. Car and Plane Accidents.............................. 21B. Other Split Domicile Cases ........................... 25

VIII. ISSUES INVOLVING MARITAL STATUS ....................... .. 25IX. WORKERS' COMPENSATION................................. 27X. TURNING JUDICIAL PRACTICE INTO LEGISLATIVE ACTION ... 28

APPENDIX A ... ............................................. 31Eleventh Circuit Court of Appeals ............................ 31United States District Court . ................................ 31United States Bankruptcy Court............................. 35Florida Supreme Court ..................................... 35Court of Appeal of Florida .................................. 35

Alice: Would you tell me, please, which way I ought to go fromhere?The Cat: That depends a good deal on where you want to get to.Alice: I don't much care where.The Cat: Then it doesn't much matter which way you go.Alice: .. .so long as I get SOMEWHERE.

* Professor Emeritus, Marquette University Law School; Visiting Professor, FloridaA&M University College of Law, 2008-11. B.A., 1976, Urbana College; M.S. 1980, J.D.,1983, University of Kentucky.

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FLORIDA A & M UNIV. LAW REVIEW

The Cat: Oh, you're sure to do that, if only you walk long enough.'

I. INTRODUCTION

In 2011, American state and federal courts reported nearly5,000 choice of law cases. 2 This no doubt represents only the tip of theiceberg; it is difficult to know how much time and money are spent onsimilar unreported cases at both the trial and appellate court levels.When one takes into account the hours invested by both courts andattorneys in choice of law disputes annually, the financial investmentis staggering.

Choice of law disputes have always presented challenges, butuntil the 1960s, such disputes occurred far less often and involved farless time than they do today. In that "life was simpler" world, allcourts followed traditional, First Restatement principles that madechoice of law decisions fairly predictable. For contracts, courts appliedlex loci contractus - the law of the place of contracting; for tort, lex locidelicti, the law of the place of wrong or place of injury; and for propertydisputes, lex situs, the law of the place where the property was located.The principles were simple and predictable, albeit at times irrational.

Beginning in the 1960s, though, states began to abandon tradi-tional choice of law analysis and to explore a variety of alternatives. Alatecomer to the choice of law revolution, the Florida Supreme Courtwaited until 1980 to reject lex loci delicti for tort. It instead adoptedthe Restatement (Second) of Conflict of Laws as its choice of law meth-odology for tort issues, noting, "In doing so we join with numerousother state courts which have adopted the more flexible, modern ap-proach to this aspect of conflicts of law."3 This more "flexible" approachhas proven to be an unmitigated failure and, in a state like Floridawhere the number of out-of-state visitors promises an unending supplyof choice of law cases, an expensive one as well.

1. LEWIS CARROLL, ALICE'S ADVENTURES IN WONDERLAND 89-90 (Boston, Lee andShepard 1869) (1865).

2. Symeon C. Symeonides, Choice of Law in the American Courts in 2011: Twenty-Fifth Annual Survey, 60 Ame. J. Comp. L. 291, 293 n.5 (2012). In diversity cases, federalcourts must apply the law of the state, including its choice of laws methodology. Klaxon Co.v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941); Erie R.R. v. Tompkins, 304 U.S. 64 (1938).

3. Bishop v. Florida Specialty Paint Co., 389 So. 2d 999, 1001 (Fla. 1980). The FloridaSupreme Court came close to rejecting traditional analysis in a much earlier case, thenbacked away. See Hopkins v. Lockheed Aircraft Corp., 201 So. 2d 743 (Fla. 1967).

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Florida scholars have from time to time tracked the state's suc-cess with the Restatement (Second).4 Less than ten years after itsadoption, the authors of one article, after lamenting the courts' lack of"expertise in conflicts doctrine," noted hopefully, "One would hope ...that the courts work through the growing pains that accompany adop-tion of a new doctrine."5 Two years later, another scholar referred tothe Florida Supreme Court's application of the Second Restatement asa story of "disintegration, confusion, and collapse."6 And six yearslater, in 1995, one scholar noted the "widespread confusion" created asthe state judiciary, lacking clear guidance from the state's highestcourt, "has largely shifted for itself as it extemporizes solutions withinthe notoriously open-ended standards of the Restatement."7

Since that first fifteen years of Florida's experience with theSecond Restatement, another seventeen years have passed. The Flor-ida courts still do not seem to know what to do with the Restatement,and attorneys are still left out in the cold, uncertain not only about thelaw the court might apply to choice of law issues, but also about theRestatement methodology the court might use, if any.

This article surveys the 150 cases decided in Florida under its"flexible" approach. The survey clearly demonstrates that the Restate-ment (Second) has proven unworkable, but it also demonstrates thatsome significant patterns have emerged from the courts' decisions.Those patterns can form the basis for a new choice of law approachconsisting primarily of rules with additional operational standards.The rules, drawn from 150 cases decided by Florida courts since 1980,would constitute a true "restatement" of Florida's current law.

II. CHOOSING FLEXIBILITY OVER PREDICTABILITY

Florida is not alone in its confusing approach to choice of law.Some have suggested that courts over-reacted to the rigid simplicity ofthe traditional choice of law approach and instead adopted approaches

4. See, e.g., Michael S. Finch, Choice of law Problems in Florida Courts: ARetrospective on the Restatement (Second), 24 STETSON L. REV. 653, 655-71 (1995); HaroldP. Southerland, A Screaming Comes Across the Sky - Tort Choice of Law Doctrine in Floridaunder the Second Restatement of Conflicts, 40 MERCER L. REV. 781, 796-817 (1989).

5. Michael Finch and Lora Smeltzly, The Restatement Second and Conflict of Laws:Extending the Bishop Approach to Problems in Contract, 16 STETSON L. REV. 261, 270(1987).

6. Southerland, supra note 4, at 782. Professor Southerland's title refers to the firstline of Thomas Pynchon's novel, Gravity's Rainbow, which he describes as a novel of"disintegration, confusion, and collapse" as he compares it to the Court's use of Restatement(Second).

7. Finch, supra note 4, at 653.

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that offer too much flexibility.8 A brief history demonstrates that theFirst Restatement's focus on predictability and uniformity led to irra-tional results, but that the Second Restatement's focus on flexibilityhas led to arbitrary and unpredictable decision-making.

Beginning in the middle of the twentieth century, First Restate-ment principles came under increasing attack by judges, lawyers, andscholars alike. The place of injury rule in particular drew criticism inthose circumstances when it seemed purely arbitrary. For example, if aFlorida plane with a Florida pilot carrying twelve Florida citizens tookoff from Miami on its way to New York and happened to crash in SouthCarolina, it made little sense for South Carolina law - the law of theplace of injury - to govern all of the disputed issues. Many courtsbegan to question such rigidity and devised a series of escape devices tobypass the place of injury rule. Sometimes they rejected the law of theplace of injury under the "public policy" exception, i.e., refusing to ap-ply another state's law when that law violated the forum's own publicpolicy.9 Other times they characterized the tort issue as a contractualdispute10 or a dispute involving status" in order to justify the applica-tion of some law other than the law of the place of injury. Some courtschose to treat the disputed issue as one of procedure rather than assubstance, 12 thus permitting them to apply their own law.

During the 1960s, a number of states rejected outright thetraditional principles in favor of more flexible, interest-based rules.Today, only ten states follow traditional principles for tort and onlytwelve for contract.13 In contrast, twenty-four states now follow the1971 Restatement (Second) of Conflict of Laws for tort and twenty-

8. See, e.g., Michael H. Gottesman, Adrift on the Sea of Indeterminacy, 75 IND. L.J.527, 527 (2000); Alfred Hill, For a Third Conflicts Restatement - But Stop Trying toReinvent the Wheel, 75 IND. L.J. 535, 538 (2000); Friedrich K. Juenger, A Third ConflictsRestatement?, 75 IND. L.J. 403, 403 (2000); Paul v. Nat'1 Life, 352 S.E.2d 550, 551 (W. Va.1986); FRIEDRICH K. JUENGER, CHOICE OF LAW AND MULTISTATE JUSTICE 235 (1993); ShirleyA. Wiegand, Fifty Conflict of Laws "Restatements": Merging Judicial Discretion andLegislative Endorsement, 65 LA. L. REV. 1, 4 (2004-05).

9. See Loucks v. Standard Oil Co. of New York, 120 N.E. 198 (N.Y. 1918).10. See, e.g., Levy v. Daniels' U-Drive Auto Renting Co., 143 A. 163 (Conn. 1928). See

also Florida Steel Corp. v. Whiting Corp., 677 F. Supp. 1140, 1141 n.1 (M.D. Fla. 1988);Herndon v. Government Employees Ins. Co., 530 So. 2d 516 (Fla. Dist. Ct. App. 1988).

11. See, e.g., Haumschild v. Continentl Cas. Co., 95 N.W.2d 814 (Wis. 1959).12. See, e.g., Grant v. McAuliffe, 264 P.2d 944 (Cal. 1953).13. Courts in the following states rely upon traditional principles for tort (T) and/or

contract (C): Alabama (T&C), Florida (C), Georgia (T&C), Kansas (T&C), Maryland (T&C),New Mexico (T&C), North Carolina (T), Oklahoma (C), Rhode Island (C), South Carolina(T&C), Tennessee (C), Virginia (T&C), West Virginia (T), and Wyoming (T&C).Symeonides, supra note 2, at 308-09.

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three for contract disputes.14 This methodology incorporates a place ofinjury rule as the presumptive rule for most tort cases and the place ofmaking for most contract cases, but it also calls for a consideration of anumber of other factors and interests. Its strength is its flexibility, ar-guably taking into account various factors when they are most relevantin the particular case. In fact, it has become so flexible that one wouldbe hard-pressed to predict the choice of law outcome in any dispute.

The Restatement (Second) can of course no longer be called"modern" - it was completed over forty years ago15 - but no one candispute its flexibility. No one can dispute its complexity, either. Oncea court determines that the laws of at least two different states orcountries are in conflict, the Restatement (Second) requires a fairlycomplicated three-step process to choose the applicable law.

One must first examine the Restatement to determine whetherit provides for a "presumptive" law that should apply - unless someother state or country has a "more significant relationship" with theevent and the parties. For example, section 146 provides:

In an action for a personal injury, the local law of the state wherethe injury occurred determines the rights and liabilities of the par-ties, unless, with respect to the particular issue, some other statehas a more significant relationship under the principles stated in §6to the occurrence and the parties, in which event the local law of theother state will be applied. 16

The Restatement (Second) requires courts to apply the law ofthe place of injury unless that presumption is overcome.

The second step requires the courts to consider certain key con-tacts in making their evaluation. For example, for tort issues courtsshould take into account not only the place of injury, but also the placeof the injury-causing conduct, "the domicile, residence, nationality,place of incorporation and place of business of the parties, and . . . theplace where the relationship, if any, between the parties is centered."17

Finally, and most importantly, once a court has determined thepresumptive rule and the key contacts, it is to apply the Second Re-statement's Section 6 General Choice of Law Principles that pertain toevery kind of issue - contract, tort, property, etc. Those Principles re-present the heart of the Restatement and demonstrate that this"modern" methodology is a clear break from the old. While traditionalmethodology asked "where," the new asks what, who, why, and how.

14. Symeonides, supra note 2, at 308-09.15. See RESTATEMENT (SECOND) OF CONFLICT OF LAWs (1971).16. RESTATEMENT (SECOND) OF CONFLICT OF LAWs §146 (1971)(emphasis added).17. Id. §145.

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Choice of law does not focus on counting contacts or determining wherea key event took place; instead, it examines the substance of each ar-guably applicable law and asks why a state adopted that law, whatpurpose it was designed to serve, why it might or might not apply ineach particular case, and how its specific application in each casemight or might not serve the law's purpose. In choice of law language,it clearly incorporates Professor Brainerd Currie's "interest analy-sis."1s The Restatement (Second) requires a court in all cases toexamine each of the Section 6 General Choice of law Principles:

(a) the needs of the interstate and international systems,(b) the relevant policies of the forum,(c) the relevant policies of other interested states and the relative

interests of those states in the determination of the particularissue,

(d) the protection of justified expectations,(e) the basic policies underlying the particular field of law,(f) certainty, predictability and uniformity of result, and(g) ease in the determination and application of the law to be

applied.19

The result is that any court adopting the Restatement (Second)must be committed not only to counting the contacts but also to con-ducting a careful policy- and interest-based analysis. It is a process forneither the faint of heart nor perhaps for busy judges.

While the First Restatement's greatest strength was its predict-ability, today's Second Restatement demonstrates that predictabilityhas all but disappeared. Choice of law has become a litigator's para-dise, a judge's playpen, a scholar's career. This article proposes analternative to Restatement (Second) for tort issues, an approach thatoffers both predictability and rationality while basing its choice of lawapproach on each state's own common law. It uses the state of Floridaas a focal point.

III. RE-STATING THE LAw

It is imperative that states find a way to make the choice of lawdecision more predictable without sacrificing the advantages of a pol-icy- and interest-based approach.20 Traditional choice of law rules,incorporated into the First Restatement, offered the utmost in predict-

18. Professor Currie's writings date to the late 1950s and are most accessible inBRAINERD CURRIE, SELECTED ESSAYS ON THE CONFLICT OF LAWS (Duke University Press1963).

19. RESTATEMENT (SECOND) OF CONFLICT OF LAWs §6 (1971).20. See Wiegand, supra note 8.

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ability. But those rules did not take into account the interests andpolicies of the people and states involved. They were jurisdiction-se-lecting, concerned only with where a particular event took place andunconcerned with the content of the law prior to its application. It wasfar easier to routinely apply the law of the place of injury, no matterwhat it was and whether it made sense.

On the other hand, modern approaches like the Second Restate-ment focus on the laws of each arguably concerned state and on theinterests of each state, the policies involved, the interests of the partiesthemselves, and a host of other factors. If one could devise a set ofrules that make the choice of law simple and predictable yet incorpo-rate the concerns reflected in the Second Restatement, one would havecombined the best of both approaches. And if those rules were basedon decisions already rendered by the state's courts, decisions that pre-sumably reflect the state's policies and interests, the rules woulddemonstrate respect for and a close adherence to the state's values andits common law. Even if the courts of a given state have routinely mis-applied their own interest-based analysis, a set of rules based on theirdecisions would at least reflect what they have done and will likelycontinue to do anyway. As one scholar has noted, courts will do whatthey will, regardless of their articulated reasoning. 21

The best approach may be to bring such decision-making out inthe open and adopt a body of rules based on that decision-making.Given that choice of law has historically developed through commonlaw, basing predictable rules on that common law is preferable to cre-ating a new approach out of whole cloth. Reliance on the state's owncommon law may also mean that the state's judiciary will find the newapproach both acceptable and understandable. What I am proposingcan best be described as a true "restatement" approach.

Currently, choice of law in this country is determined primarilythrough Restatements of Conflict of Laws. Thirty-eight states relyupon either the First or Second Restatement of Conflict of Laws inmaking choice of law decisions, and the others have borrowed heavilyfrom such Restatements. 22 But what exactly is a Restatement? Is itan attempt to survey and then summarize - re-state - existing law?

21. Robert A. Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54CAL. L. REv. 1584, 1586 (1966).

22. For example, six states use the "significant contacts" test for either tort or contract,or both, which often requires reliance on relevant contacts taken from the SecondRestatement. Ten states use a "combined modern" approach, again relying heavily onaspects of the First or Second Restatements of Conflict of Laws. For a list of the states andtheir approaches, see Symeonides, supra note 2, at 308-09.

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Or is it something else? The American Law Institute (ALI), founded in1923, is responsible for drafting Restatements of the Law in a varietyof fields.23 Its first project was to "address uncertainty in the lawthrough a restatement of basic legal subjects that would tell judges andlawyers what the law was."2 4 In other words, the ALI would provide atool that would attempt to clarify the current state of the law.

Its work on the first Restatement of the Conflict of Laws didjust that. It reviewed the common law of courts from around the coun-try, all of which followed some form of traditional choice of lawprinciples, then incorporated those principles into the Restatement ofConflict of Laws, published in 1934. Criticism of the first Restatementbegan shortly thereafter, and just twenty years later, the ALI beganwork on the Second Restatement. By this time, a number of scholarshad begun formulating their own ideas of how choice of law decisionsshould be made, and many of these scholars participated in the ALI'sdrafting process.25 The process lasted seventeen years and resulted ina document that has been called "a total disaster," "chaos," "gibberish,""a veritable playpen for judicial policymakers," and "a conflicts minefield in a maze constructed by professors drunk on theories."26 It is nota "re-statement" of the law; rather, it is a combination of scholars'ideas of what the law should be. Perhaps because it is so unfocused,"[tirying to be all things to all people,"27 it can reasonably be consid-ered a failure.

IV. FLORIDA'S EXPERIENCE WITH THE RESTATEMENT (SECOND)

Since its adoption of a "modern" approach to choice of law fortort issues thirty-two years ago, Florida's state courts, its federal dis-trict courts, and the Eleventh Circuit Court of Appeals have reportedat least 150 cases that required litigation of choice of law tort issues.

23. About the American Law Institute, http://www.ali.org/doc/thisIsALI.pdf, at 1.During its first twenty years, the American Law Institute drafted Restatements of the Lawfor Agency, Conflict of Laws, Contracts, Judgments, Property, Restitution, Security, Torts,and Trusts. It has since expanded its focus to a number of additional Restatementsincluding second and third restatements in some areas. Id.

24. Id.25. The ALI consists of "prominent American judges, lawyers, and teachers," elected to

membership in the organization. About the American Law Institute, supra note 23, at 1.26. Gottesman, supra note 8, at 527; Hill, supra note 8, at 538; Juenger, A Third

Conflicts Restatement?, supra note 8, at 403; Paul v. Nat'l Life, 352 S.E.2d 550, 551 (W. Va.1986); JUENGER, CHOICE OF LAW AND MULTISTATE JUSTICE, supra note 8, at 235; Wiegand,supra note 8, at 4.

27. Douglas Laycock, Equal Citizens of Equal and Territorial States: TheConstitutional Foundations of Choice of Law, 92 CoLum. L. REV. 249, 253 (1992).

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Ninety-eight of those - over sixty-five percent - have been decided inthe past fifteen years. In other words, rather than decreasing (as onewould expect if courts applied a consistent, predictable analysis to tortissues), the number of such cases has increased. In addition, federalcourt decisions - those in which the courts must guess at what thestate court would do2 8 - represent the majority of all such decisions; inthe federal district courts, seventy-four percent of all tort choice of lawcases decided since Florida adopted Restatement (Second) have arisenjust since 2000.

More than thirty years after Florida adopted the Restatement(Second) for tort issues, its "more flexible, modern approach" has cre-ated chaos. It is safe to say there is neither uniformity norpredictability in this area of the law. It is also safe to say such chaoshas cost lawyers and their clients many thousands of dollars and thecourt many thousands of hours. The state has continued to followtraditional analysis for contract issues, a decision that seems wise con-sidering its experience with a "modern" approach for torts.

It is unlikely that the Florida courts will improve in their appli-cation of the Second Restatement. After all, they have had thirty-twoyears to do so and have not. An analysis of 150 caseS29 reveals thatmore than seventy percent of the time, courts fail to utilize the mostimportant part of Second Restatement analysis, the crucial Section 6General Choice of law Principles.30 Not surprisingly then, given thatSection 6 is the only section that reflects an interest analysis approach,courts rarely mention interest-analysis considerations. They refer tothe Second Restatement's presumptive rule less than forty percent ofthe time. And over seventy percent of the time, they rely almost exclu-sively on the Section 145 list of "contacts to be taken into account."Most of the courts simply list some or all of those contacts, count themup, and choose the law of the one that has the most contacts or the

28. See supra note 2.29. See Appendix A for a list of the cases included in this analysis. It is, of course,

possible that a few cases have been overlooked, so the list does not purport to include everysuch case during this thirty-year period. It does include most of them, however.

30. There are exceptions, though none of them include decisions by the state's highestcourt. See e.g., Nelson v. Freightliner, LLC, 154 Fed. Appx. 98 (11th Cir. 2005); PiambaCortes v. American Airlines, Inc., 177 F.3d 1272 (11th Cir. 1999); Estate of Miller v. ThriftyRent-A-Car Sys., Inc., 609 F. Supp. 2d 1235 (M.D. Fla. 2009); Pycsa Panama, S.A. v. TensarEarth Tech., Inc., 2008 U.S. Dist. LEXIS 31457 (S.D. Fla. 2008); Medina v. AmericanAirlines, Inc., 2005 U.S. Dist. LEXIS 18916 (S.D. Fla. 2005); In re Air Crash Near Cali,Colombia on Dec. 20, 1995, 1997 U.S. Dist. LEXIS 14143 (S.D. Fla. 1997); Connell v.Riggins, 944 So. 2d 1174 (Fla. Dist. Ct. App. 2006); Mezroub v. Capella, 702 So. 2d 562 (Fla.Dist. Ct. App. 1997); Wal-Mart Stores, Inc. v. Budget Rent-A-Car Sys., 567 So. 2d 918 (Fla.Dist. Ct. App. 1990).

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contacts that the court believes are most relevant, without explainingtheir relevance. Most of the time, no attention is given to policies orstates' interests. The analysis becomes merely a matter of contact-counting, bearing almost no relationship to the Second Restatementwhile purporting to follow it.

Recently, one federal district court judge criticized the defend-ants' choice of law argument for just this error:

"[Tihey mechanically tally up the four contacts listed in section145(2).. . without even acknowledging the analysis required by sec-tion 6.. . . [W]e cannot simply add up the factors ... and then applythe law of the sovereign with the greatest numerical total ....Rather, we must, as mandated ... ,turn to the factors delineated insection 6 to determine which sovereign has the most significantcontacts.3 1

And yet, most Florida state and federal courts ignore section 6altogether.

Despite this practice, Florida courts often reach a reasonableresult, no matter what methodology they purport to follow. They ap-plied the law of the place of injury over sixty percent of the time, evenwhen they failed to mention the Restatement's strong place-of-injurypresumption. For out of state injuries, Florida courts overcame a natu-ral inclination to apply their own law and instead applied Florida lawjust over twenty-two percent of the time. Thus, place of injury takescenter stage in Florida decisions, just as it does in the Second Restate-ment when properly applied. The courts were most often reluctant toapply the law of the place of injury when the injury was the only con-tact with that place and when that place was merely "fortuitous" or amatter of "happenstance."3 2

A review of the cases since the Florida Supreme Court adoptedthe Second Restatement for tort leads to two important conclusions.First, applying the Restatement (Second) in the manner that its draft-ers intended takes a significant amount of time and analysis, whichprobably explains why courts rarely do so. One United States DistrictCourt opinion included twenty pages dedicated to a careful Restate-ment (Second) application.3 3 Another dedicated eighteen pages to the

31. Canon Latin Am., Inc. v. Lantech (C.R.) S.A., 2011 U.S. Dist. LEXIS 6267, 12-17(S.D. Fla. 2011).

32. See, e.g., Crowell v. Clay Hyder Trucking Lines, Inc., 700 So. 2d 120 (Fla. Dist. Ct.App. 1997); Harris v. Berkowitz, 433 So. 2d 613 (Fla. Dist. Ct. App. 1983); Futch v. RyderTruck Rental, Inc., 391 So. 2d 808 (Fla. Dist. Ct. App. 1980).

33. See Pycsa Panama, S.A. v. Tensar Earth Tech., Inc., 2008 U.S. Dist. LEXIS 31457(S.D. Fla. 2008).

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subject.34 On the other hand, courts that engage in simple contact-counting have a much easier job of it, most of them devoting less thanone page to the choice of law discussion.

Second, one cannot predict either the methodology the courtwill follow or the result it will reach. But - and this is the crucialpoint - some "rules" have emerged from the court's analysis, which, ifacknowledged and adopted as part of a choice of law codification, willmake the court's task easier and its results more predictable. Thisarticle next focuses on finding and articulating these rules - providinga true re-statement for Florida courts.

V. A NEw APPROACH

It is clear that Florida - like many other states - requires a newapproach to choice of law. The Second Restatement, though it includesa series of "presumptive" rules, is more accurately considered an "ap-proach" to choice of law, a guideline or standard that courts consider inmaking individual ad hoc decisions for every case. It appears that inrejecting the rigid rules of the First Restatement, courts have over-re-acted, opting for no rules at all. But rules have their place. They offerpredictability and can include exceptions that provide flexibility; anumber of choice of law scholars believe that the "pendulum has begunswinging back" to a rule-based methodology.3 5

What sort of rules? Here again, there are options. Rules can bemade from whole cloth or from a combination of features from variouschoice of law methodologies. The latter is the approach taken recentlyby two different states in devising their own choice of law statutes. Inboth cases, state law reform commissions drafted comprehensivechoice of law statutes which have now become law.3 6

Louisiana, the country's only civil code state, was the first topass a choice of law code. 7 The project took four years and receivedapproval from an advisory committee, then the Council of the Louisi-

34. See In re Air Crash Near Cali, Colombia on Dec. 20, 1995, 1997 U.S. Dist. LEXIS14143 (S.D. Fla. 1997).

35. Symeon Symeonides, Oregon's New Choice-of-Law Codification for Tort Conflicts:An Exegesis, 88 OR. L. REV. 963, 970 (2009).

36. See LA. Civ. CODE ANN. arts. 14, 3515-3549 (2009), effective in 1992, and OregonLaws Ch. 451 (S.B. 561), effective January 1, 2010. Both were drafted by state law reformcommissions comprised of members of all branches of government as well as members fromother legal organizations and law faculties in the state. In both cases Conflict of LawProfessor Symeon Symeonides served as the Reporter.

37. See LA. CIV. CODE Book 4, arts. 3515-3549 (2012).

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ana State Law Institute, and finally the Louisiana legislature.38 Thecode reflects threads of modern choice of law methodologies drawnfrom a variety of sources and has been met with mixed reviews. 39

Oregon recently completed choice of law legislation for contractand tort disputes.40 It too began with proposed legislation drafted by astate law reform commission and was then adopted first for contractsin 2001 and then for tort in 2010.41 According to one of its principalarchitects, the new tort rules "drew on the vast experience of Americancourts in deciding tort conflicts in the four decades since the choice-of-law revolution began, as well as the experience of other jurisdictions indrafting rules for tort conflicts." Those jurisdictions included eighteenforeign countries, international conventions, the Second Restatement,and a host of other sources. 42 The result is a body of rules governingmost issues, as well as a Second Restatement-like approach for thoseissues not addressed by the rules.

What neither state has done is to adopt choice of law legislationbased on its own common law. Under this approach, a law reform com-mission or legislative committee would examine the state's commonlaw history under whatever methodology the state has previouslyadopted, try to find patterns for at least those issues that arise withsome regularity, and, based on those findings, develop choice of lawrules, i.e., individual state "re-statements," to govern key choice of lawareas in the state. Such statutes, based on the state's own common law,presumably already incorporate state policies. In Florida, for example,courts have clearly used methodological shortcuts to reach choice oflaw results, but the results themselves are surprisingly consistent.Thus, courts seem to have reached the "right" decision regardless ofmethodology, and those decisions most likely took into account under-lying policies and interests - the sort of decisional concerns that courtsroutinely incorporate.

A law reform commission formed under the authority of thestate's legislature with members representing many state constituen-cies would thus honor the efforts of the judicial branch while engaging

38. See Wiegand, supra note 8, at 13. For a fuller discussion of the Louisiana project,see Symeon C. Symeonides, Louisiana's New Law of Choice of Law for Tort Conflicts: AnExegesis, 66 TUL. L. REV. 677 (1992).

39. For a discussion of the Louisiana choice of law code and its critics, see Wiegand,supra note 8, at 13-16.

40. See Symeonides, supra note 35. See also James A.R. Nafziger, Oregon's ConflictsLaw Applicable to Contracts, 38 WILLAMETTE L. REV. 397 (2002).

41. See Or. Rev. Stat. §§81.100-81.135 (2010) (contract choice of law); 2009 Or. LawsCh. 451 (S.B. 561) (torts and non-contractual claims).

42. Symeonides, supra note 35, at 973 n.50.

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as well representatives of the legislative and executive branches and anumber of other state representatives. The result would be a writtenproduct that reflects the state's policies and jurisprudence - what Ihave termed a "true 'restatement' of the law" that merges judicial dis-cretion and legislative endorsement. 4 3

In the meantime, if the law reform process seems too dauntingfor states, or if the process promises to take too long, the state's judici-ary itself might adopt a body of choice of law "rules" for recurringissues, based on their own precedent in similar cases. Those rules mayserve as the basis for statutory reform at a later date.

The goal is to provide choice of law predictability, uniformity,and certainty in those areas that dominate the choice of law terrain.As expressed by one frustrated New York judge:

The time has come . . . for us to endeavor to minimize what somehave characterized as an ad hoc case-by-case approach by layingdown guidelines, as well as we can, for the solution of ... conflictsproblems. We have had sufficient experience with enough varia-tions of the patterns of fact and law in this type of case to permit usto acknowledge that several choice of law rules governing differenttypes of fact patterns have been forged by our recent decisions. 44

Reviewing the choice of law history of just one state - Florida- demonstrates that such an approach is workable and promises toincrease predictability in this chaotic area of the law. Below are a fewof the "rules" that Florida's judiciary or a law reform commission mightadopt for issues relating to torts.

VI. THE RULE OF THE COMMON DOMICILE

One of the clear trends emerging from the conflicts revolution is thewidespread acceptance of the notion that, when the tortfeasor andthe victim are domiciled in the same state and the conflict in ques-tion involves loss-distribution (as opposed to conduct-regulation)issues, the law of the common domicile should govern, even if boththe conduct and the injury occurred in another state.45

The rule of common domicile dictates that when both or all ofthe parties are from the same state, the law of that state should beapplied, no matter where the tort took place. This rule makes sense.The parties have all chosen to affiliate with a particular state. They

43. See Wiegand, supra note 8, at 2.44. Tooker v. Lopez, 249 N.E.2d 394, 403 (N.Y. 1969) (Fuld, C.J., concurring).45. Symeon C. Symeonides, Choice of Law in the American Courts in 2007: Twenty-

First Annual Survey, 56 Am. J. Comp. L. 243, 256 (2008).

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benefit from its laws and bear the concomitant responsibilities. Theyhave impliedly agreed to abide by its laws. In addition, that state isthe one state that would have the greatest interest in the parties'welfare.

In addition, the common domicile rule has a rich history.Nearly forty years ago, it was one of the three rules adopted by theNew York Court of Appeals for resolving cases involving automobileguest statutes. The rule continues there today and not simply forguest statute disputes. Its origin can be traced to 1963 in Babcock v.Jackson,4 6 a case that involved a New York driver, a New York passen-ger, and a one-car accident in Ontario. Under New York law thepassenger could have sued the driver for ordinary negligence, but On-tario's guest statute imposed a higher standard of negligence. TheNew York Court of Appeals, in rejecting the traditional place-of-injuryrule, noted,

[I]t is New York, the place where the parties resided, where theirguest-host relationship arose and where the trip began and was toend.. .which has the dominant contacts and the superior claim forapplication of its law. . . . the rights and liabilities of the partieswhich stem from their guest-host relationship should remain con-stant and not vary and shift as the automobile proceeds from placeto place. 47

In another guest statute case six years later, New York's high-est court again focused on the parties' domicile, holding that New Yorklaw applied in a case in which the car accident occurred in Michiganand involved a New York driver and a New York passenger. 48 NewYork, the Court held, "has the only real interest in whether recoveryshould be granted."4 9 Perhaps more important than the Court's major-ity opinion, however, was Judge Fuld's concurring opinion. Heconcluded that the Court had had enough experience with guest stat-ute cases to "permit us to acknowledge that several choice of law rulesgoverning different types of fact patterns have been forged by our re-cent decisions."5 0 The first of his three rules (now known as theNeumeier Rules named after the 1972 case in which the court adoptedthem5 1 ) was the common domicile rule: when the driver and passenger"are domiciled in the same state, and the car is there registered, the

46. 191 N.E.2d 279 (N.Y. 1963).47. Id. at 284-85.48. Tooker v. Lopez, 249 N.E.2d 394 (N.Y. 1969).49. Id. at 398.50. Id. at 403.51. See Neumeier v. Kuehner, 286 N.E.2d 454 (N.Y. 1972).

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law of that state should control and determine the standard of carewhich the host owes to his guest."52

The common domicile rule applied initially only to guest statutecases. The rationale was that guest statutes are "loss-allocating"rather than "conduct regulating." They assume a tort has taken place;the statute merely determines who should bear the loss as between thetwo parties. A modern example of a loss-allocating rule is charitableimmunity. As with guest statutes, a charitable immunity rule appliesonly after a tort has taken place and it determines whether or not thetortfeasor charity must pay; it determines how the loss will be allo-cated. It makes sense to apply the law of the common domicile since itis the only "interested" state, i.e., it is the only state that will be af-fected by the loss allocating dispute between its two citizens. Inaddition, the common domicile rule represents "prevailing judicialpractice in the United States," as well as a growing trend worldwide.53

Issues relating to standards of conduct, i.e., conduct-regulatinglaws, on the other hand, are designed to regulate the tortious conductitself. Speed limits are perhaps the simplest example. When tortiousconduct takes place in a foreign state, as when a driver is speeding,then the state where the conduct takes place is likely to take an inter-est in keeping its roads safe. The common domicile, in other words, isnot the only state with an interest in the dispute. Thus, an exceptionto the common domicile rule might occur when the conflict of law issueinvolves a clearly conduct-regulating law such as the proper standardof care. In that case, though the parties may both be from one state,when they are in another state and violate that state's conduct-regulat-ing rule, the conduct-regulating rule should govern.

Since the adoption of the common domicile rule for guest stat-ute cases, New York courts have adopted it for other loss-allocatingrules as well, and other states have begun to follow suit. In 1993, in aworker's compensation case, New York's highest court declared thatthe rules adopted for guest statute cases "could, in appropriate cases,apply as well to other loss allocation conflicts."54 By the end of 2011,state supreme courts that had rejected traditional analysis applied thelaw of the common domicile eighty-five percent of the time.55

52. Id. The other two rules address situations in which the driver and passenger donot share a common domicile.

53. Symeonides, supra note 35, at 1001.54. Cooney v. Osgood Machinery, Inc., 612 N.E.2d 277, 281 (N.Y. 1993).55. Symeonides, supra note 2, at 313.

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One of those cases involved two Florida citizens, a husband andwife involved in a car accident in New Jersey.56 The passenger wifesued her driver husband, permissible under the law of New Jersey,which had abandoned inter-spousal immunity. However, based onboth their common domicile and their marital relationship, centered inFlorida, the New Jersey Supreme Court applied Florida's loss-allocat-ing law of inter-spousal immunity.57

A. Car and Plane Accidents

Florida cases involve a variety of tort issues, but more than one-third of all choice of law tort cases decided since Florida's adoption ofmodern analysis arise from car or plane crashes. This includes casesthat involve insurance-related issues and rental car company liabilityso long as the disputed issues are grounded in tort.5 8

The majority of car and plane cases involved parties from differ-ent states, the split domicile scenario. However, of the fifty car andplane cases surveyed, sixteen involved parties sharing a common domi-cile. If one can discern clear patterns from these cases, it is possiblethat one can begin to fashion a rule applicable to other cases as well.

Although Florida courts have applied the Restatement (Second)inconsistently, they have been fairly consistent in recognizing that theplace of injury is often fortuitous and that the law of the common domi-cile should be applied. In Crowell v. Clay Hyder Trucking Lines, Inc.,69the Crowells, Florida residents, were the subjects of a hit and run acci-dent in Georgia. The truck which hit them bore the insignia of aFlorida trucking company. The court held that Florida law should ap-ply, noting, "Florida decisions have repeatedly held that the

56. See Veazey v. Doremus, 510 A.2d 1187 (N.J. 1986).57. However, in Waite v. Waite, 618 So. 2d 1360, 1361 (Fla. 1993), the Florida Supreme

Court held that "both public necessity and fundamental rights require judicial abrogation ofthe [interspousal immunity] doctrine."

58. It does not include cases in which the courts held that contract rather than tort lawgoverned the dispute. Often, it's hard to tell the difference. For example, in Herndon v.Gov't Employees Ins. Co., GEICO argued that the issue of prejudgment interest on anuninsured motorist payment is grounded in tort and subject to the significant relationshiptest. The court instead treated it as a contract dispute governed by lex loci contractus. Seealso Allstate Ins. Co. v. Clohessy, 32 F. Supp. 2d 1328 (M.D. Fla. 1998). This article focusesexclusively on tort issues, because Florida has retained traditional analysis (place ofcontracting) for contract disputes. Generally, applying traditional analysis to contractissues provides far more predictability than applying Restatement (Second). Currently,twelve states follow traditional analysis for contract disputes: Alabama, Florida, Georgia,Kansas, Maryland, New Mexico, Oklahoma, Rhode Island, South Carolina, Tennessee,Virginia, and Wyoming. See Symeonides, supra note 2, at 308-09.

59. 700 So. 2d 120 (Fla. Dist. Ct. App. 1997).

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happenstance of an accident's occurrence in another state does not cre-ate significant contacts for the purpose of applying that state's law in aconflict of law dispute."60

In Krasnosky v. Meredith,61 two Florida residents were re-turning to Florida after a trip to visit relatives in Atlanta. Their carcrashed into a tree in Georgia. In a suit by the Florida passengeragainst the Florida driver, the court refused to apply Georgia's gueststatute, instead opting for Florida's statute that required a showing ofonly simple negligence. Similarly, in Harris v. Berkowitz,6 2 two Flor-ida residents were returning to Florida from a Maine summer camp,when their car crashed into a tree in Maine. The court had to deter-mine whose wrongful death statute to apply. It chose Florida's.Despite the fact that the men had attended summer camp in Maineand the accident occurred there, the court still found the place of injury"fortuitous." Maine, it said, bore "little relation to the occurrence," par-ticularly since both parties were from Florida.

Florida courts have applied the common domicile rule evenwhen the parties are from a state other than Florida. In Leinhart v.Jurkovich,63 an Illinois university student in Florida for a swim meetsued his university and Illinois van driver when the team's van wasinvolved in an accident on Florida roads. The court refused to applyFlorida's no-fault insurance law, opting instead for Illinois law.

In fact, the court applied the law of the common domicile in nineout of eleven automobile crash cases involving parties from the samestate. 64 An exception is Jones v. Cook,65 in which a Florida residentwas struck by a vehicle in Georgia where she worked. The defendantwas also a Florida resident. Rather than apply Florida's statute of lim-

60. Id. at 123.61. 447 So. 2d 232 (Fla. Dist. Ct. App. 1983)62. 433 So. 2d 613 (Fla. Dist. Ct. App. 1983).63. 882 So. 2d 456 (Fla. Dist. Ct. App. 2004).64. The court applied the law of the common domicile in Rivas v. Ford Motor Co., 2004

U.S. Dist. LEXIS 7535 (M.D. Fla. 2004); Leinhart v. Jurkovich, 882 So. 2d 456 (Fla. Dist. Ct.App. 2004); Mezroub v. Capella, 702 So. 2d 562 (Fla. Dist. Ct. App. 1997); Crowell v. ClayHyder Trucking Lines, 700 So. 2d 120 (Fla. Dist. Ct. App. 1997); Beattey v. College Centre,613 So.2d 52 (Fla. Dist. Ct. App. 1992)(treating students attending college in New York asNew York residents); Stallworth v. Hospitality Rentals, Inc., 515 So. 2d 413 (Fla. Dist. Ct.App. 1987); Pennington v. Grange Mut. Cas. Co., 456 So. 2d 507 (Fla. Dist. Ct. App. 1984);Krasnosky v. Meredith, 447 So. 2d 232 (Fla. Dist. Ct. App. 1983); Harris v. Berkowitz, 433So. 2d 613 (Fla. Dist. Ct. App. 1983).


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itations under Second Restatement analysis,66 the court appliedGeorgia law. It did not mention the crucial Section 6 of the Restate-ment, noting merely that the plaintiff worked in Georgia and thedefendant "did business in Georgia on a regular basis." It did not men-tion why that might have given Georgia any interest in having its lawapply. The court might have relied upon Section 146, comment e, ofthe Restatement (Second) for support, though it did not. Comment eprovides that the presumptive law of the place of injury "is most likelyto be applied when the injured person has a settled relationship to thatstate, either because he is domiciled or resides there or because he doesbusiness there."67 The court might have treated place of business as aproxy for domicile, which Section 145 itself does when it lists as a rele-vant contact either domicile or place of business.68 In fact, in a similarcase the court had applied Florida's statute of limitations in a lawsuitfiled by a Florida passenger against his Florida driver for an accidentin Georgia. The difference between these two cases is that in the lattercase, neither party worked in Georgia; they were merely attending aconference there.6 9

The second exception to Florida's application of the commondomicile rule for automobile cases is Hoffman v. Ouellette.70 There,both parties were from Quebec, yet the court applied Florida law. Thecourt's decision may have been based on two factors. First, the partiesresided in Florida approximately five months a year and the accidentoccurred in Florida. Second, Florida courts have demonstrated an un-derstandable aversion to applying the law of another country, and,although the court failed to refer to it, Section 6 of the Second Restate-ment specifically directs courts to consider the "ease in thedetermination and application of the law to be applied."71

The law of the common domicile has been applied as well inplane crash cases. This article does not address mass tort cases involv-ing large commercial planes. Such cases inevitably make choice of lawmore complex. In consolidated cases, i.e., cases that began by differentplaintiffs in different states and consolidated for pre-trial purposes,courts may have to apply different bodies of law to different plaintiffs.

66. Florida adopted Second Restatement analysis for determining where a cause ofaction "arose" under Florida's borrowing statute, FLA. STAT. § 95.10, in Bates v. Cook, Inc.,509 So. 2d 1112 (Fla. 1987).

67. RESTATEMENT (SECOND) OF CONFLICT OF LAws § 146 comment e (emphasis added).68. RESTATEMENT (SECOND) OF CONFLICT OF LAws § 145.69. Mezroub v. Capella, 702 So. 2d 562 (Fla. Dist. Ct. App. 1997).70. 798 So. 2d 42 (Fla. Dist. Ct. App. 2001).71. Restatement (Second) of Conflict of Laws § 6(g).

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A number of choice of law proposals have surfaced to address the masstort case, but to date mass torts present challenges yet to be resolved(and outside the scope of this article). 72 This article focuses only oncases that involve smaller non-commercial planes.

In Proprietors Insurance Co. v. Valsecchi,73 a plane crashed inNorth Carolina. The flight began and was to end its journey in Florida.Three men, all temporary residents of Florida attending college inFlorida, were killed, and their estates sued the plane's Florida ownersand lessors. As the court notes, "North Carolina's only connection tothe event and the parties was the purely adventitious circumstancethat the aircraft crashed" there.74 Although the three victims were notnecessarily domiciled in Florida, the court noted that they were Floridaresidents, and "Florida's interest lies in the protection of its residentsfrom excessive financial burdens ... ."75 The court applied Florida law.

Other plane crash cases involving parties sharing a commondomicile led to similar results. In Watts v. National Insurance Under-writers,76 the plane crashed in Louisiana. It was owned by Floridadefendants and both the pilot and passengers were Florida residents.The court found the site of the crash fortuitous and applied Floridalaw.

None of the common domicile car or plane crash cases involveda conduct-regulating rule. All were loss-allocating, i.e., they did notimplicate any conduct-regulating rule of the place of injury. Thus, theplace of injury had no particular interest in how the case would be re-solved when all the parties were from another state. For example, inCrowell, the issue involved "ownership of the ... vehicle."77 Krasnoskyinvolved a guest statute. Both Harris and Proprietors Insurance in-volved wrongful death recovery limits and, in addition, ProprietorsInsurance involved comparative/contributory negligence and the appli-cation of Florida's dangerous instrumentality (vicarious liability)doctrine.7 8 Watts, too, involved the dangerous instrumentalitydoctrine.

72. See, e.g., In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d594 (7th Cir. 1981). For a discussion of the choice of law problem for mass torts, see LarryKramer, Choice of Law in Complex Litigation, 71 N.Y.U. L. REV. 547 (1996).

73. 435 So. 2d 290 (Fla. Dist. Ct. App. 1983).74. Id. at 295.75. Id. at 297.76. 540 F. Supp. 488 (S.D. Fla. 1982).77. 700 So. 2d at 122.78. Florida's dangerous instrumentality doctrine has been the subject of a number of

conflict of laws cases. That number will undoubtedly decline or stop altogether since theEleventh Circuit Court of Appeals has ruled that the doctrine imposing strict vicarious

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Adopting a common domicile rule for tort cases makes goodsense, at least for loss-allocating issues. It is generally what the Flor-ida courts have done anyway and it thus pays homage to bothprecedent and to the Second Restatement that focuses much of its at-tention on the interests of the relevant states and on the domicile ofthe parties. Although the Restatement initially presumes that the lawof the place of injury will apply in tort cases,79 the law of another statewill be applied when, "with respect to the particular issue," it has themost significant relationship with the parties and the occurrence. 0

Relevant Restatement contacts under section 145 include theplace of conduct and the place of injury, but when the "particular issue"in dispute does not focus on the conduct but rather on who will pay forthe loss, then place of conduct and place of injury become less signifi-cant in common domicile cases. Other Restatement contacts includethe domicile of the parties and the place where their relationship iscentered, though most agree that in cases involving unplanned tortsbetween strangers, there is no pre-existing relationship. Thus, of allthe contacts listed in section 145, domicile appears the most relevantfor common domicile cases involving loss-allocating issues.

The key "choice of law principles" found in section 6 of the Re-statement reinforce domicile as a significant factor in common domicilecases. The principles include:

* relevant policies of the forum and other interested states and the"relative interests of those states in the determination of the par-ticular issue;"

* "basic policies underlying the particular field of law;"* "certainty, predictability and uniformity of result;" and* "ease in the determination and application of the law to be

applied."8

liability on car rental companies has been preempted by the Graves Amendment, 49 U.S.C.§ 30106. See Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242 (11th Cir. 2008). Thelaw of the common domicile was applied in Stallworth v. Hospitality Rentals, Inc., 515 So.2d at 413, which also involved the dangerous instrumentality doctrine. Pennington v.Grange Mut. Cas. Co., 456 So. 2d at 507, involved interspousal immunity, a loss-allocatingissue. That doctrine too has now been abrogated. See Waite v. Waite, 618 S. 2d 1360 (Fla.1993).

79. See, e.g., RESTATEMENT (SECOND) OF CONFLICT OF LAws §§ 146, 147.80. RESTATEMENT (SECOND) OF CONFLICT OF LAws § 146.81. RESTATEMENT (SECOND) OF CONFLICT OF LAwS § 6 (1971) (emphasis added). Other

section 6 factors are less important for unplanned torts. The "protection of justifiedexpectations" applies primarily in contract cases when the parties actually haveexpectations. The "needs of the interstate and international systems" are best served whensimple, neutral, and predictable rules reduce the amount of time and expense involved inchoice of law decisions.

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Thus, applying a common domicile rule for all cases exceptthose involving a standard of care does not represent any change inresult. It simply means that courts and lawyers will spend less timeand money in reaching that result. It is logical and predictable.

B. Other Common Domicile Cases

The common domicile rule may also be a good rule for cases thatdo not involve car or plane crashes. There is nothing inherently specialabout cases involving car or plane crashes such that the common domi-cile rule should be reserved exclusively for them. In the few Floridacommon domicile cases that did not involve car or plane crashes, thecourts applied the law of the common domicile regardless of whetherthe issue was loss-allocating or conduct-regulating.82 Just as with carand plane crash cases, the parties in a common domicile case have allchosen to affiliate with a particular state and have impliedly agreed toabide by its laws. They benefit from those laws and should bear theburden as well. In addition, that common state is the one state thatlikely would have the greatest interest in the parties' welfare.

VII. SPLIT DOMICILE CASES

A. Car and Plane Accidents

The majority of Florida choice of law decisions for cases involv-ing car crashes involves parties from different states. Of the twenty-five split domicile cases analyzed,83 the court applied the law of the

82. See Central Trust Co. v. Shepard (In re Shepard), 29 B.R. 928 (1983 Bankr. LEXIS6201); Robinson v. Merkle, 700 So. 2d 723 (Fla. Dist. Ct. App. 1997) (all parties resided inWest Virginia at the time of the alleged medical malpractice though doctor later moved toFlorida); Walsh v. Arrow Air, Inc., 629 So. 2d 144 (Fla. Dist. Ct. App. 1993).

83. Judge v. Am. Motors Corp., 908 F.2d 1565 (11th Cir. 1990); Miller v. Thrifty Rent-A-Car Sys., Inc., 609 F. Supp. 2d 1235 (M.D. Fla. 2009); Potts v. Budget Rent A Car Sys.,Inc., 2005 U.S. Dist. LEXIS 27536 (N.D. Fla. 2005); Estate of Miller v Ford Motor Co., 2004U.S. Dist. LEXIS 30811 (M.D. Fla. 2004); Barton v. Hertz Corp., 35 F. Supp. 2d 1377 (M.D.Fla. 1999); Liberty Mut. Ins. Co. v. Elec. Sys., Inc., 813 F. Supp. 802 (S.D. Fla. 1993); HertzCorp. v. Piccolo, 453 So. 2d 12 (Fla. 1984); State Farm Mut. Auto. Ins. Co. v. Olsen, 406 So.2d 1109 (Fla. 1981); Connell v. Riggins, 944 So. 2d 1174 (Fla. Dist. Ct. App. 2006); Sierra v.A Betterway Rent-A-Car, Inc., 863 So. 2d 358 (Fla. Dist. Ct. App. 2003); Jenkins v.Rockwood, 820 So. 2d 426 (Fla. Dist. Ct. App. 2002); Brown v. Nat'l Car Rental Sys., Inc.,707 So. 2d 394 (Fla. Dist. Ct. App. 1998); Deemer v. Budget Rent-A-Car Sys., Inc., 704 So.2d 133 (Fla. Dist. Ct. App. 1997); Ryder Truck Rental, Inc. v. Rosenberger, 699 So. 2d 713(Fla. Dist. Ct. App. 1997); Aetna Cas. & Surety Co. v. Huntington Nat'l Bank, 587 So. 2d 483(Fla. Dist. Ct. App. 1991); Commerce Ins. Co. v. Atlas Rent A Car, Inc., 585 So. 2d 1084 (Fla.Dist. Ct. App. 1991); Wal-Mart Stores, Inc. v. Budget Rent-A-Car Sys., 567 So. 2d 918 (Fla.Dist. Ct. App. 1990); Barker v. Anderson, 546 So. 2d 449 (Fla. Dist. Ct. App. 1989); Avis

22 FLORIDA A & M UNIV. LAW REVIEW Vol. 8:1:1

place of injury in nineteen of them, or seventy-six percent of the time.8 4

But when one of the parties resided in the same state as the place ofinjury (in fifteen cases), the court applied the law of the place of injuryevery time.85

Applying the law of the place of injury in split domicile casescan be justified in a number of ways. First and most importantly,when the parties are from different states, the place of injury is likelythe only place with which all parties have chosen to associate. Second,when there is a car crash the place of injury does provide some servicessuch as police, ambulance, and hospital services. Third, the choice ofplace of injury furthers at least two of the seven Restatement choice oflaw principles: it promotes certainty, predictability, and uniformity ofresult and it furthers the needs of the interstate systems. Choosingbetween the laws of different states can result in interstate friction,and choosing one's own law appears parochial.

Several plane crashes involved split domicile as well. Unlessthe crash involved large, consolidated cases86 or a crash over foreignsoil,87 Florida courts have applied the law of the place of injury for splitdomicile cases.88 When the parties do not share a common domicile,conflict of laws decisions become more difficult and the place of injurycan serve as a default. That is not always the wisest decision because

Rent-A-Car Sys., Inc. v. Abrahantes, 517 So. 2d 25 (Fla. Dist. Ct. App. 1987); AIU Ins. Co. v.Reese, 498 So. 2d 966 (Fla. Dist. Ct. App. 1986); Ploor v. Greyhound Lines, Inc., 474 So. 2d1280 (Fla. Dist. Ct. App.1985); Amica Mut. Ins. Co. v. Gifford, 473 So. 2d 220 (Fla. Dist. Ct.App. 1985); Andrews v. Continental Ins. Co., 444 So. 2d 479 (Fla. Dist. Ct. App. 1984);Steele v. Southern Truck Body Corp., 397 So. 2d 1209 (Fla. Dist. Ct. App. 1981); Decker v.Great Am. Ins. Co., 392 So. 2d 965 (Fla. Dist. Ct. App. 1981).

84. See Potts, 2005 U.S. Dist. LEXIS at 27536; Estate of Miller, 2004 U.S. Dist. LEXISat 30811; Liberty Mut. Ins. Co., 813 F. Supp. at 802; Hertz Corp., 453 So. 2d at 12; StateFarm Mut. Auto. Ins. Co., 406 So. 2d at 1109; Connell, 944 So. 2d at 1174; Sierra, 863 So. 2dat 358; Jenkins, 820 So. 2d at 426; Brown, 707 So. 2d at 394; Ryder Truck Rental, Inc., 699So. 2d at 713; Aetna Cas. &Surety Co., 587 So. 2d at 483; Commerce Ins. Co., 585 So. 2d at1084; Barker, 546 So. 2d at 449; Avis Rent-A-Car, 517 So. 2d at 25; AIU, 498 So. 2d at 966;Ploor, 474 So. 2d at 1280; Amica Mut. Ins. Co., 473 So. 2d at 220; Steele, 397 So. 2d at 1209;Decker, 392 So. 2d at 965.

85. See Estate of Miller, 2004 U.S. Dist. LEXIS at 30811; Liberty Mut. Ins. Co., 813 F.Supp. at 802; Hertz Corp., 453 So. 2d at 12; State Farm Mut. Auto. Ins. Co., 406 So. 2d at1109; Connell, 944 So. 2d at 1174; Sierra, 863 So. 2d at 358; Brown, 707 So. 2d at 394;Commerce Ins. Co., 585 So. 2d at 1084; Barker, 546 So. 2d at 449; Avis Rent-A-Car, 517 So.2d at 25; AIU, 498 So. 2d at 966; Ploor, 474 So. 2d at 1280; Amica Mut. Ins. Co., 473 So. 2dat 220; Steele, 397 So. 2d at 1209; Decker, 392 So. 2d at 965.

86. See In re Air Crash Near Cali, Colombia on December 20, 1995, 24 F. Supp. 2d 1340(S.D. Fla. 1998).

87. See Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272 (11th Cir. 1999).88. See Emmart v. Piper Aircraft Corp., 659 F. Supp. 843 (S.D. Fla. 1987); Peoples

Bank & Trust Co. v. Piper Aircraft Corp., 598 F. Supp. 377 (S.D. Fla. 1984); AeroviasNacionales de Colombia, S.A., Avianca, Inc. v. Tellez, 596 So. 2d 1193 (Dist. Ct. App. 1992).

GETTING NOWHERE

when a dispute arises from a plane crash, place of injury - if that is theonly contact - seems quite irrelevant. A plane can crash anywhereand, unlike car crashes, airline passengers have not intentionally en-tered into a particular state willingly and knowingly, relying upon itspublic services along the way.

Nevertheless, Florida's experience with such cases can serve asthe foundation for choice of law rules. In eleven plane crash cases, fivewere common domicile (Florida) cases, and the courts applied Floridalaw.89 Three of the other cases arose from one large plane crash inColombia in 1995,90 and because the courts were able to find signifi-cant contacts with Florida, they were able to avoid applying foreignlaw and, in all three instances, applied Florida law. In two of the Co-lombia crashes, the courts noted that the largest number of passengerswere Florida residents and that the plane had taken off from a Floridaairport.9 1 In the third, in addition to the plane's departure from Flor-ida, the court noted that two of the pilot defendants were Floridaresidents. In addition, Florida and Colombia laws were the only onesplaced in contention. 92

The remaining three air crash cases involved parties from dif-ferent states and the crashes were in the United States.9 3 In all ofthem, though, one of the parties resided in the same state in which thecrash occurred, so the courts applied the place of injury. In addition, inall three cases, the decision to apply the law of the place of injury wasmade easier because the place of injury was not fortuitous. The planescrashed in the same state from which they departed and to which theyintended to return. Thus, the parties intentionally affiliated with thatstate in some significant way.

89. See Schipper v. U.S., 2011 U.S. Dist. LEXIS 136980 (M.D. Fla. 2011) (Federal TortClaims Act case applying Texas' Restatement (Second) analysis); Watts v. Nat'l Ins.Underwriters, 540 F. Supp. 488 (S.D. Fla. 1982); Proprietors Ins. Co. v. Valsecchi, 435 So.2d 290 (Fla. Dist. Ct. App. 1983) (plaintiffs treated as Florida residents because of theirstudent status there; no party argued for application of their home state's law); Hayden v.Krusling, 531 F. Supp. 468 (N.D. Fla. 1982) (involving crash in Gulf of Mexico; issue ofmaritime v. Florida law); Bishop v. Fla. Specialty Paint Co., 389 So. 2d 999 (Fla. 1980)(impliedly choosing Florida law by rejecting lex loci delicti analysis).

90. Piamba Cortes v. American Airlines, 177 F.3d 1272 (11th Cir. 1999); In re AirCrash Near Cali, Colombia on Dec. 20, 1995, 24 F. Supp. 2d 1340 (S.D. Fla. 1998); In re AirCrash Near Cali, Colombia on Dec. 20, 1995, 1997 U.S. Dist. LEXIS 14143 (S.D. Fla.1997)(Colombia crash).

91. See In re Air Crash, 24 F. Supp. 2d at 1340 and U.S. Dist. LEXIS 14143.92. See Piamba Cortes, 177 F.3d at 1272.93. Boromei v. U.S., 2003 U.S. Dist. LEXIS 27859 (S.D. Fla. 2003); Emmart v. Piper

Aircraft Corp., 659 F. Supp. 843 (S.D. Fla. 1987); Peoples Bank & Trust Co. v. Piper AircraftCorp., 598 F. Supp. 377 (S.D. Fla. 1984).

2012 23


One can develop a rule from these decisions that reflects thevalues articulated by the courts as well as those associated with theSecond Restatement. The Restatement's presumptive place of injuryrule should not carry much weight when a plane crashes mid-flight,and even the place of the negligent conduct may be irrelevant. For ex-ample, when the negligent conduct takes place in the air - perhapsbecause the pilots are busy with their smartphones and ignoring theirduties - the state over which such behavior takes place should notthereby develop an interest in having its law applied. In such a case,where the plane finally crashes is also fortuitous. Then the only rele-vant Restatement contacts94 are where the parties are domiciled,incorporated, or work; and where the parties' relationship is centered.

When a small plane crashes and the parties all share a domi-cile, Florida courts should ignore the place of injury and apply - asthey have - the law of the common domicile. Schipper, Bishop, Hay-den, Proprietors Insurance, and Watts so hold.95

If the parties do not share a domicile, courts should apply (andhave applied) the place of injury if one of the parties resides in thatstate. This rule is reflected in Boromei, Emmart, and Peoples Bank &Trust.96

These results make sense and could easily be adopted as sensi-ble, effective, predictable rules for similar cases.

This leaves those cases in which the parties' domiciles differand none of the parties reside at the place of injury or death. Thesecases could receive thorough Restatement (Second) analysis or somemodified version of it. In Florida, the only crash that would receivesuch analysis is In re Air Crash,97 involving the 1995 crash in Colom-bia. In applying Florida law, the court placed some weight on the factthat the plane had taken off from a Florida airport. However, this factmay present problems, and courts should be wary of adopting a rulethat places great value on where a plane takes off. For example, onewho departs from Tallahassee may have to fly through Atlanta to getto Miami. If a plane crashes after takeoff from Atlanta, should Georgialaw apply? Tallahassee residents already resent having to fly north toget south, and it seems quite unfair to charge them with Georgia law

94. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS §145.95. See Schipper, 2011 U.S. Dist. LEXIS at 136980; Bishop, 389 So. 2d at 999; Hayden,

531 F. Supp. at 468; Proprietors Ins. Co., 435 So. 2d at 290; Watts, 540 F. Supp. at 488.96. See Boromei, 2003 U.S. Dist. LEXIS at 27859; Emmart, 659 F. Supp. at 843;

Peoples Bank & Trust, 598 F. Supp. at 377.97. 24 F. Supp. 2d at 1340.

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as a result. Finding another Florida contact would make this resultfairer, and Florida cases reflect this analysis, though unarticulated.

B. Other Split Domicile Cases

Other than cases involving car and plane crashes, Floridacourts decided sixty-two split domicile cases. In fifty-nine of those, oneof the parties was domiciled in the state of injury. In nearly eighty-fivepercent of those (fifty of the fifty-nine cases), the courts applied the lawof the place of injury. In the remaining cases, the choice of some otherlaw can usually be explained by unique circumstances. For example, inCalixto v. Watson Bowman Acme Corp.,98 the place of injury was Braziland the courts have demonstrated reluctance to apply foreign law. Inother cases, the injury was felt in more than one state, so the courtapplied the law of the place of conduct instead.99 Two cases involvedan issue for which specific Second Restatement comments indicate thatthe place of conduct should ordinarily determine the applicable law. 0 0

Department of Corrections v. McGhee'01 involved the sovereign immu-nity and duty of the Florida Department of Corrections, and the courtapplied Florida law. Moreover, when the place of conduct is merely"fortuitous," that is, where the injury could have occurred in any state(such as a mid-air plane crash), the court is less likely to give muchweight to the place of injury. 102 It is notable that in the nine cases inwhich the court did not apply the law of the place of injury, it insteadapplied the law of the place of conduct seven times and in each of thosecases, one of the parties was domiciled at the place of conduct.

VIII. ISSUES INVOLVING MARITAL STATUS

Some tort cases indirectly involve the marital status of the par-ties. They include interspousal immunity and loss of consortiumclaims. The rule of common domicile could surely apply here when both

98. 637 F. Supp. 2d 1064 (S.D. Fla. 2009).99. See Default Proof Credit Card Sys., Inc. v. State Street Bank & Trust Co., 753 F.

Supp. 1566 (S.D. Fla. 1990).100. See Merriman v. Convergent Bus. Sys., Inc., 1993 U.S. Dist. LEXIS 10528 (N.D.

Fla. 1993) and Trumpet Vine Investments, N.V. v. Union Capital Partners I, Inc., 92 F.3d1110 (11th Cir. 1996), both citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS §145comment f ("place of injury is less significant in the case of fraudulent misrepresentations... and of such unfair competition as consists of false advertising and the misappropriationof trade values.")

101. 653 So. 2d 1091 (Fla. Dist. Ct. App. 1995).102. See Nelson v. Freightliner, LLC, 154 Fed. Appx. 98 (11th Cir. 2005) (truck driver

killed by carbon monoxide fames as he slept in the cab of his truck).

2012 25


parties are from the same state. Alternatively, one could argue that thecourt should apply the law of the place where the marital relationshipis based. The Restatement (Second) specifically directs that, for all in-tra-family immunity issues, the "applicable law will usually be thelocal law of the state of the parties' domicile." 0 3 However, that sectionalso notes that this rule applies "only if the suit is between members ofa family," and not when it involves third persons, for example, when"an injured spouse brings suit against a third person, and [the thirdperson] in turn seeks contribution from the other spouse on the groundthat the latter was partly responsible for the injury."104 Understanda-bly, when a third party from another state is involved, the family'sdomicile does not automatically have a greater interest in the result.However, again in the interest of predictability and simplicity, wouldsuch an across-the-board rule make sense?

Florida's courts have had experience with this issue. In AvisRent-A-Car Systems, Inc. v. Abrahantes,105 two Miami men were in-jured in the Cayman Islands when their jeep overturned. They suedthe car rental company. Although the Florida court applied the law ofthe place of injury, Cayman Islands, to the main case, it applied Flor-ida law to the wives' loss of consortium claims.' 06 Citing cases fromother states, the Florida court found that "[claims for loss of consor-tium are governed by the law of the state where the marriage isdomiciled. . . ."1o7 In Pennington v. Dye,108 an Ohio couple was involvedin a car accident in Florida. The issue was interspousal immunity.The court easily found that Ohio law should apply for a variety of rea-sons. Both the married couple and the other driver were from Ohioand had been vacationing in Florida, and their insurance policies wereall issued in Ohio. The court noted, "A growing number of courts haveheld that the issue of contribution should be decided by the law of thestate where all of the parties reside rather than by the law of the statewhere the accident occurred." 09 Although this case was easy, giventhat all the parties were from Ohio, the court might have added thatwhen the issue of contribution is bound up with interspousal immu-nity, the law of the spousal domicile should be applied.

103. RESTATEMENT (SECOND) OF CONFLICT OF LAws §169.104. Id. §169 cmts. a, c.105. 517 So. 2d 25 (Fla. Dist. Ct. App. 1987).106. Avis Rent-A-Car Systems, Inc. v. Abrahantes, 559 So. 2d 1262 (Fla. Dist. Ct. App.

1990).107. Id. at 1264.108. 456 So. 2d 507 (Fla. Dist. Ct. App. 1984).109. Id. at 510.

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IX. WORKERS' COMPENSATION

By examining Florida common law, one could also fashion arule that governs a recurring workers' compensation issue. The rulemight be that when an out-of-state employer hires an out-of-stateworker who is injured while working in Florida and who collectsworker compensation from his own state, the worker may not thereaf-ter use the Florida courts to sue his employer in tort. The rule wouldreflect a strong Florida policy regarding employer immunity.

Three cases demonstrate the courts' acknowledgment of thispolicy. In Garcia v. Public Health Trust of Dade County,110 a Spanishcitizen and employee of Iberia Airlines was injured while in Miami,Florida. Iberia's physician treated him in a Miami hospital. Althoughhe was compensated under Spanish workers compensation law, hesued the airline and physician in tort. The court applied Florida work-ers compensation law which did not permit double recovery, eventhough Spanish law would have permitted the additional damages."Florida has articulated a strong public policy with respect to employerimmunity for work related injuries. Because Spanish law allows suitagainst employers, Spanish law would contravene strong public policyof the forum state.""' The court cited Florida Statute section 440.09as support:

Where an accident happens while the employee is employed else-where than in this state, which would entitle him or his dependentsto compensation if it had happened in this state, the employee orhis dependents shall be entitled to compensation... .However, if anemployee shall receive compensation or damages under the laws ofany other state, nothing herein contained shall be construed so asto permit a total compensation for the same injury greater than isprovided herein. 112

A similar result occurred in Marion Power Shovel Co. v. Har-gis, 1 13 where an out-of-state contractor hired an Indiana sub-contractor to work on a project in Florida. The sub-contractor in turnhired an Illinois worker who was injured while working in Florida.The worker collected workers compensation benefits under Illinois law,and then sued the contractor in tort. The court held that, because the

110. 841 F.2d 1062 (11th Cir. 1988).111. Id. at 1066.112. The current statute provides that "if an employee receives compensation or

damages under the laws of any other state, the total compensation for the injury may not begreater than is provided in this chapter." FLA. STAT. § 440.09 (1)(d) (2010).


2012 27


injury and allegedly tortious conduct occurred in Florida, the contrac-tor was immune from liability under Florida law.

In Plath v. Malebranche,1 1 4 an Oregon worker was injured onan escalator while attending an employer-sponsored conference inFlorida, rather than while working in the state. She collected Oregonworkers compensation benefits and then sued the allegedly negligentco-worker and employer in tort. The court in that case applied Oregonlaw, which did not permit such suits. The court noted, however, thatthe result would likely be the same under Florida law. It cited Flor-ida's "strong public policy of shielding an employer from liability forinjuries for which the employee received workers' compensation" butalso pointed out that "Oregon has an even stronger public policy ofshielding employers from liability."115 Thus, "given Plaintiffs minimalcontact with Florida as compared to Oregon's strong public policy ofshielding employers from liability, the fact that Plaintiff has alreadychosen to participate in Oregon's workers' compensation system, andthat Plaintiffs employment relationship . . . is centered in Oregon, theCourt finds Oregon has a more significant relationship to the instantaction.116

Although the courts in these three cases applied varying meth-odologies, all three of them agreed that the employees were limited toworker compensation recoveries.

X. TURNING JUDICIAL PRACTICE INTO LEGISLATIVE ACTION

The analysis above demonstrates how consistently courtschoose the applicable law for many Florida tort cases. What is mostinconsistent is the method they choose to get there. They tend to ar-rive at the same place via different routes, thus making the choice oflaw decision much more complex, unpredictable, and expensive thannecessary. It is time to jettison the Second Restatement and replace itwith something more user-friendly, more consistent, and morepredictable.

A new approach to choice of law need not represent an entirelydifferent approach. One can draft rules in many areas, based on whatthe Florida courts have already done.

Adopting rules based on these cases will facilitate choice of lawdecisions. Although adopting a rule sacrifices thorough analysis of in-

114. 351 F. Supp. 2d 1338 (M.D. Fla. 2005).115. Id. at 1342.116. Id.

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terests and policies, courts rarely engage in such analysis anyway,even though many scholars would wish otherwise. Adopting rulesrather than Restatement principles or standards inevitably results inless analysis. But less analysis might be considered preferable to thecurrent bad analysis demonstrated by our courts, particularly whenthe new approach offers predictability and consistency.

In those areas not clearly addressed by the state's common law,one might look to the recent efforts of other states for additional gui-dance. As noted above, two states have already adopted their ownchoice of law statutes. Louisiana adopted its scheme in 1992, though ithas not led to the predictability for which it was drafted.117 That couldbe because its provisions rely too heavily, not on rules, but on the samesort of standard that makes the Second Restatement so uncertain. In-stead of the Restatement's "most significant relationship" test, theLouisiana code provides some rules but generally requires applicationof "the law of the state whose policies would be most seriously impairedif its law were not applied." Like the Restatement's reference to vari-ous factors, the Louisiana Code requires reference to a variety ofcontacts and policies."1s Its strongest feature is that it provides for afairly simple analysis for issues related to standards of conduct andsafety, and it adopts the common domicile rule for loss distributionissues.

Oregon's most recent effort appears to warrant closer attention.Effective January 1, 2010, the statute borrows heavily from the Louisi-ana effort 19 without incorporating the "seriously impaired" standard.Its rules are straightforward with appropriate escape devices for theexceptional case. Such a statutory scheme could easily be employed inFlorida, relying for primary guidance on the state's thirty years of judi-cial decisions.

Under Oregon's statute, courts would apply Oregon law in ac-tions against an owner of real property located in Oregon for injury onthat property "arising out of conduct that occurs in Oregon."120 Oregonlaw would also apply to "[aictions between an employer and an em-ployee who is primarily employed in Oregon that arise out of injury

117. See, e.g., Patrick J. Borchers, Louisiana's Conflicts Codification: Some EmpiricalObservations Regarding Decisional Predictability, 60 LA. L. REV. 1061 (2000); Russell J.Weintraub, Courts Flailing in the Waters of the Louisiana Conflicts Code: Not Waving butDrowning, 60 LA. L. REV. 1365 (2000). For a broader discussion of Lousiana's effort, seeWiegand, supra note 8, at 13-16.

118. LA. CIV. CODE art. 3542 (2010).119. The similarities are not surprising, given that Professor Symeon Symeonides

played a key role in the drafting of both.120. Or. Rev. Stat. § 15.430(5)(2011).

2012 29


that occurs in Oregon" and to "la]ctions for professional malpracticearising from services rendered entirely in Oregon" by Oregon-licensedprofessionals. 121 There is a separate section for product liability, aswell as a common domicile rule. Additional rules apply to specific cir-cumstances, and the statute has a default provision when none of therules apply. In such a case, the courts are instructed to apply "the lawof the state whose contacts with the parties and the dispute and whosepolicies on the disputed issues make application of the state's law themost appropriate for those issues." Second Restatement-like principlesguide this decision. For example, courts must consider states thathave a relevant contact with the dispute, and must consider the needsand policies of each of those states.122

The point here is not that Oregon has figured out the most sen-sible choice of law approach. Rather, it is that the legislative schemeprovides far more guidance and far less room for arbitrariness than theSecond Restatement. It is likely that Florida courts would reach thesame or similar results as Oregon courts will do under their new ap-proach. Why? Because in most cases, the methodology does not seemto matter, particularly when it is properly applied so seldom.

Florida is ready for a similar effort. Relying on the patternsdiscussed in this article and incorporating additional rules and stan-dards will lead to a choice of law statute that will minimize this area ofuncertainty now and in the future. It will also honor the decisionsmade by Florida judges over the past thirty-two years as they strug-gled to utilize the complicated Second Restatement analysis.

121. Or. Rev. Stat. § 15.430(6), (7)(2011).122. Or. Rev. Stat. § 15.445 (2011).

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APPENDIx A

Choice-of-Law Decisions Involving Tort Issues, 1980 - present(Listed by court and in reverse chronological order)

Eleventh Circuit Court of Appeals

Grupo Televisa, S.A. v. Telemundo Communications Group, Inc., 485F.3d 1233 (11th Cir. 2007)

Nelson v. Freightliner, LLC, 154 Fed. Appx. 98 (11th Cir. 2005)Green Leaf Nursery v. E.I. Dupont de Nemours & Co., 341 F.3d 1292

(11th Cir. 2003)Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272 (11th Cir.

1999)Trumpet Vine Investments, N.V. v. Union Capital Partners I, Inc. 92

F.3d 1110 (11th Cir. 1996)Digioia v. H. Koch & Sons, 944 F.2d 809 (11th Cir. 1991)Judge v. American Motors Corp., 908 F.2d 1565 (11th Cir. 1990)Shapiro v. Associated Int'l Ins. Co., 899 F.2d 1116 (11th Cir. 1990)Garcia v. Public Health Trust of Dade County, 841 F.2d 1062 (11th Cir.

1988)Boyd Bros. Transp. Co. v. Fireman's Fund Ins. Co., 729 F.2d 1407 (11th

Cir. 1984)

United States District Court

Walewski v. Zenimax Media, Inc., 2012 U.S. Dist. LEXIS 33181 (M.D.Fla. 2012)

Schippers v. United States of America, 2011 U.S. Dist. LEXIS 136980(M.D. Fla. 2011)

Del Istmo Assurance Corp. v. Platon, 2011 U.S. Dist. LEXIS 129906(S.D. Fla. 2011)

Zelma v. Williams, 2011 U.S. Dist. LEXIS 123933 (M.D. Fla. 2011)Mardegan v. Mylan, Inc., 2011 U.S. Dist. LEXIS 89787 (S.D. Fla. 2011)Oginski v. Paragon Props., 2011 U.S. Dist. LEXIS 88254 (S.D. Fla.

2011)Learning Connections, Inc. v. Kaufman, 2011 U.S. Dist. LEXIS 80080

(M.D. Fla. 2011)In re Trasylol Prods. Liab. Litig., 2011 U.S. Dist. LEXIS 80447 (S.D.

Fla. 2011)

2012 31


Costa v. Kerzner Int'l Resorts, Inc., 2011 U.S. Dist. LEXIS 66921 (S.D.Fla. 2011)

Canon Latin Am., Inc. v. Lantech, 2011 U.S. Dist. LEXIS 6267 (S.D.Fla. 2011)

Chapman v. Depuy Ortho., Inc., 760 F. Supp. 2d 1310 (M.D. Fla. 2011)Lewandowski v. Bayer, 2010 U.S. Dist. LEXIS 128951 (S.D. Fla. 2010)Pearlman v. MTV Networks, 2010 U.S. Dist. LEXIS 88873 (M.D. Fla.

2010)In re Banco Santander Sec.-Optimal Litig., 732 F. Supp. 2d 1305 (S.D.

Fla. 2010)O'Donnell v. Wachovia Bank, N.A., 2010 U.S. Dist. LEXIS 34394 (S.D.

Fla. 2010)Pierson v. Orlando Reg'l Healthcare Sys., 2010 U.S. Dist. LEXIS 33974

(M.D. Fla. 2010)Estate of Miller v. Thrifty Rent-A-Car Sys., Inc., 637 F. Supp. 2d 1029

(M.D. Fla. 2009)De Leon v. Bank of Am., N.A., 2009 U.S. Dist. LEXIS 106845 (M.D.

Fla. 2009)Calixto v. Watson Bowman Acme Corp., 637 F. Supp. 2d 1064 (S.D.

Fla. 2009)In re United States Sugar, 669 F. Supp. 2d 1301 (S.D. Fla. 2009)Estate of Miller v. Thrifty Rent-A-Car Sys., Inc., 609 F. Supp. 2d 1235

(M.D. Fla. 2009)In re Nationsrent Rental Fee Litigation, 2009 U.S. Dist. LEXIS 23662

(S.D. Fla. 2009)Rashid v. Barr Laboratories, Inc., 2008 U.S. Dist. LEXIS 102676 (M.D.

Fla. 2008)Auto Internet Marketing, Inc. v. Targus Information Corp., 2008 U.S.

Dist. LEXIS 98595 (M.D. Fla. 2008)Campbell v. Starwood Hotels & Resorts Worldwide, Inc., 2008 U.S.

Dist. LEXIS 81121 (S.D. Fla. 2008)Cohen v. Implant Innovations, Inc., 2008 U.S. Dist. LEXIS 64144 (S.D.

Fla. 2008)Valentino v. Bond, 2008 U.S. Dist. LEXIS 63485 (N.D. Fla. 2008)Duckett v. Cable News Network LLLP, 2008 U.S. Dist. LEXIS 88667

(M.D. Fla. 2008)Cohen v. Implant Innovations, Inc., 259 F.R.D. 617 (S.D. Fla. 2008)Castellanos v. Pfizer, Inc., 2008 U.S. Dist. LEXIS 42586 (S.D. Fla.

2008)Pycsa Panama, S.A. v. Tensar Earth Technologies, Inc., 2008 U.S. Dist.

LEXIS 31457 (S.D. Fla. 2008)

2012 GETTING NOWHERE 33

Bravo v. Honigman Miller Schwartz and Cohn LLP, 2008 U.S. Dist.LEXIS 9787 (M.D. Fla. 2008)

Mukamal v. Bakes, 383 B.R. 798, 2007 U.S. Dist. LEXIS 96347 (S.D.Fla. 2007)

Horowitch v. Diamond Aircraft Industries, Inc., 526 F. Supp. 2d 1236(M.D. Fla. 2007)

Lydia Security Monitoring, Inc., v. Alarm One, Inc., 2007 U.S. Dist.LEXIS 62087 (S.D. Fla. 2007)

Ziino v. Baker, 2007 U.S. Dist. LEXIS 61616 (M.D. Fla. 2007)Berry v. Budget Rent A Car Sys., Inc., 497 F. Supp. 2d 1361 (S.D. Fla.

2007)Topp, Inc. v. Uniden America Corp., 483 F. Supp. 2d 1187 (S.D. Fla.

2007)Gulf Group Holdings, Inc. v. Coast Asset Mgmt. Corp., 516 F. Supp. 2d

1253 (S.D. Fla. 2007)Int'l. Star Registry v. Omnipoint Marketing, LLC, 510 F. Supp. 2d

1015 (S.D. Fla. 2007)Hendricks v. Smartvideo Technologies, Inc., 511 F. Supp. 2d 1219

(M.D. Fla. 2007)Allapattah Services, Inc. v. Exxon Corp., 2006 U.S. Dist. LEXIS 59368

(S.D. Fla. 2006)Border Collie Rescue, Inc., v. Ryan, 418 F. Supp. 2d 1330 (M.D. Fla.

2006)Potts v. Budget Rent A Car System, Inc., 2005 U.S. Dist. LEXIS 27536

(N.D. Fla. 2005)Medina v. American Airlines, Inc., 2005 U.S. Dist. LEXIS 18916 (S.D.

Fla. 2005)CFJ Mfr, L.P. v. Sweetworks, Inc., 2005 U.S. Dist. LEXIS 33953 (M.D.

Fla. 2005)Motmanco, Inc., v. McDonald's Corp., 2005 U.S. Dist. LEXIS 33965

(M.D. Fla. 2005)Plath v. Malebranche, 351 F. Supp. 2d 1338 (M.D. Fla. 2005)Cargill, Inc. v. Zeigler Bros., Inc., 2004 U.S. Dist. LEXIS 30758 (S.D.

Fla. 2004)Estate of Miller v. Ford Motor Co., 2004 U.S. Dist. LEXIS 30811 (M.D.

Fla. 2004)Rivas v. Ford Motor Co., 2004 U.S. Dist. LEXIS 7535 (M.D. Fla. 2004)Altadis USA Inc. v. NPR, Inc., 308 F. Supp. 2d 1304 (M.D. Fla. 2004)Boromei v. U.S., 2003 U.S. Dist. LEXIS 27859 (S.D. Fla. 2003)Walker v. Paradise Grand Hotel, LTD., 2003 U.S. Dist. LEXIS 25660

(S.D. Fla. 2003)


Ungaro-Benages v. Dresdner Bank AG, 2003 U.S. Dist. LEXIS 27693(S.D. Fla. 2003)

Gonzalez-Jimenez de Ruiz v. U.S., 231 F. Supp. 2d 1187 (M.D. Fla.2002)

Gritzke v. M.R.A. Holding, LLC, 2002 U.S. Dist. LEXIS 28085 (N.D.Fla. 2002)

O'Keefe v. Darnell, 192 F. Supp. 2d 1351 (M.D. Fla. 2002)Montgomery v. New Piper Aircraft, Inc., 209 F.R.D. 221 (S.D. Fla.

2001)Estate of Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1345 (S.D. Fla.

2001)Northland Cas. Co. v. HBE Corp., 145 F. Supp. 2d 1310 (M.D. Fla.

2001)Florida Evergreen Foliage v. E.I. Dupont de Nemours, 135 F. Supp. 2d

1271 (S.D. Fla. 2001)Minor v. Metro. Life Ins. Co., 2000 U.S. Dist. LEXIS 12542 (M.D. Fla.

2000)Barton v. Hertz Corp., 35 F. Supp. 2d 1377 (M.D. Fla. 1999)In re Air Crash Near Cali, Colombia on Dec. 20, 1995, 24 F. Supp. 2d

1340 (S.D. Fla. 1998)In re Air Crash Near Cali, Colombia on Dec. 20, 1995, 1997 U.S. Dist.

LEXIS 14143 (S.D. Fla. 1997)Jaisinghani v. Capital Cities/ABC, Inc., 973 F. Supp. 1450 (S.D. Fla.

1997)Cymrot v. Smith Barney, Harris Upham & Co., Inc., 1994 U.S. Dist.

LEXIS 20134 (S.D. Fla. 1994Merriman v. Convergent Bus. Sys., 1993 U.S. Dist. LEXIS 10528 (N.D.

Fla. 1993)Liberty Mut. Ins. Co. v. Electronic Sys., Inc., 813 F. Supp. 802 (S.D.

Fla. 1993)Pulte Home Corp. v. Ply Gem Indus., 804 F. Supp. 1471 (M.D. Fla.

1992)Garay v. BRK Elec., 755 F. Supp. 1010 (M.D. Fla. 1991)Default Proof Credit Card Sys., Inc. v. State St. Bank & Trust Co., 753

F. Supp. 1566 (S.D. Fla. 1990)Chierchia v. Treasure Cay Serv., 738 F. Supp. 1386 (S.D. Fla. 1990)Lanchile Airlines v. Connecticut Gen. Life Ins. Co., 731 F. Supp. 477

(S.D. Fla. 1990)Tew v. Chase Manhattan Bank, N.A., 728 F. Supp. 1551 (S.D. Fla.

1990)Madera v. Hall, 717 F. Supp. 812 (S.D. Fla. 1989)

GETTING NOWHERE

Norsul Oil & Mining Co. v. Texaco, Inc., 703 F. Supp. 1520 (S.D. Fla.1988)

Florida Steel Corp. v. Whiting Corp., 677 F. Supp. 1140 (M.D. Fla.1988)

Emmart v. Piper Aircraft Corp., 659 F. Supp. 843 (S.D. Fla. 1987)Garcia v. Public Health Trust of Dade County, 657 F. Supp. 99 (S.D.

Fla. 1987)Bates v. Cook, Inc., 615 F. Supp. 662 (M.D. Fla. 1984)Peoples Bank & Trust Co. v. Piper Aircraft Corp., 598 F. Supp. 377

(S.D. Fla. 1984)Watts v. National Ins. Underwriters, 540 F. Supp. 488 (S.D. Fla. 1982)Hayden v. Krusling, 531 F. Supp. 468 (N.D. Fla. 1982)

United States Bankruptcy Court

Advanced Imaging Center v. Cassidy (In re Cassidy), 352 B.R. 519(Bankr. M.D. Fla. 2006)

Cuthill v. Greenmark, LLC (In re World Vision Entm't, Inc.), 275 B.R.641 (Bankr. M.D. Fla. 2002)

Davis v. Barnett Bank, N.A., 99 B.R. 95 (Bankr. M.D. Fla. 1989)Shepard v. Central Trust Co., 29 B.R. 928 (Bankr. M.D. Fla. 1983)

Florida Supreme Court

Fulton Co. Adm'r v. Sullivan, 753 So. 2d 549 (Fla. 1999)Merkle v. Robinson, 737 So. 2d 540 (Fla. 1999)Celotex Corp. v. Meehan, 523 So. 2d 141 (Fla. 1988)Bates v. Cook, Inc., 509 So. 2d 1112 (Fla. 1987)Hertz Corp. v. Piccolo, 453 So. 2d 12 (Fla. 1984)State Farm Mut. Auto. Ins. Co. v. Olsen, 406 So. 2d 1109 (Fla. 1981)Bishop v. Florida Specialty Paint Co., 389 So. 2d 999 (Fla. 1980)

Court of Appeal of Florida

Connell v. Riggins, 944 So. 2d 1174 (Fla. 1st Dist. Ct. App. 2006)Siegel v. Novak, 920 So. 2d 89 (Fla. 4th Dist. Ct. App. 2006)Hinton v. Benson, 898 So. 2d 967 (Fla. 3d Dist. Ct. App. 2005)Leinhart v. Jurkovich, 882 So. 2d 456 (Fla. 4th Dist. Ct. App. 2004)Sierra v. Betterway Rent-A-Car, Inc., 863 So. 2d 358 (Fla. 3d Dist. Ct.

App. 2003)Jenkins v. Rockwood, 820 So. 2d 426 (Fla. 4th Dist. Ct. App. 2002)Hoffman v. Ouellette, 798 So. 2d 42 (Fla. 4th Dist. Ct. App. 2001)Dean v. Johns, 789 So. 2d 1072 (Fla. 1st Dist. Ct. App. 2001)

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FLORIDA A & M UNIV LAW REVIEW

Tune v. Philip Morris Inc., 766 So. 2d 350 (Fla. 2d Dist. Ct. App. 2000)Renaissance Cruises, Inc. v. Glassman, 738 So. 2d 436 (Fla. 4th Dist.

Ct. App. 1999)Brown v. Nat'l Car Rental Sys., Inc., 707 So. 2d 394 (Fla. 3d Dist. Ct.

App. 1998)Campo v. Tafur, 704 So. 2d 730 (Fla. 4th Dist. Ct. App. 1998)Mezroub v. Capella, 702 So. 2d 562 (Fla. 2d Dist. Ct. App. 1997)Deemer v. Budget Rent-A-Car Sys., Inc., 704 So. 2d 133 (Fla. 1st Dist.

Ct. App. 1997)Crowell v. Clay Hyder Trucking Lines, Inc., 700 So. 2d 120 (Fla. 2d

Dist. Ct. App. 1997)Robinson v. Merkle, 700 So. 2d 723 (Fla. 2d Dist. Ct. App. 1997)Marion Power Shovel Co. v. Hargis, 698 So. 2d 1246 (Fla. 3d Dist. Ct.

App. 1997)Ryder Truck Rental, Inc. v. Rosenberger, 699 So. 2d 713 (Fla. 3d Dist.

Ct. App. 1997)Dep't of Corrections v. McGhee, 653 So. 2d 1091 (Fla. 1st Dist. Ct. App.

1995)Walsh v. Arrow Air, Inc., 629 So. 2d 144 (Fla. 3d Dist. Ct. App. 1993)Beattey v. College Centre of Finger Lakes, Inc., 613 So. 2d 52 (Fla. 4th

Dist. Ct. App. 1992)Aerovias Nacionales de Colombia, S.A. v. Tellez, 596 So. 2d 1193 (Fla.

3d Dist. Ct. App. 1992)Jones v. Cook, 587 So. 2d 570 (Fla. 1st Dist. Ct. App. 1991)Commerce Ins. Co. v. Atlas Rent a Car, Inc., 585 So. 2d 1084 (Fla. 3d

Dist. Ct. App. 1991)Aetna Cas. & Surety Co. v. Huntington Nat'l Bank, 587 So. 2d 483

(Fla. 4th Dist. Ct. App. 1991)Walsh v. Arrow Air, Inc., 1991 Fla. App. LEXIS 4718 (Fla. 3d Dist. Ct.

App. 1991)Tinwood N.V. v. Sun Banks, Inc., 570 So. 2d 955 (Fla. 5th Dist. Ct.

App. 1990)Wal-Mart Stores, Inc. v. Budget Rent-A-Car Sys., 567 So. 2d 918 (Fla.

1st Dist. Ct. App. 1990)Avis Rent-A-Car Sys., Inc. v. Abrahantes, 559 So. 2d 1262 (Fla. 3d Dist.

Ct. App. 1990)Nance v. Eagle Picher Indus., 559 So. 2d 93 (Fla. 3d Dist. Ct. App.

1990)Barker v. Anderson, 546 So. 2d 449 (Fla. 1st Dist. Ct. App. 1989)Stallworth v. Hospitality Rentals, Inc., 515 So. 2d 413 (Fla. 1st Dist.

Ct. App. 1987)

36 Vol. 8:1:1

GETTING NOWHERE

Avis Rent-A-Car Sys., Inc. v. Abrahantes, 517 So. 2d 25 (Fla. 3d Dist.Ct. App. 1987)

AIU Ins. Co. v. Reese, 498 So. 2d 966 (Fla. 2d Dist. Ct. App. 1986)Ploor v. Greyhound Lines, Inc., 474 So. 2d 1280 (Fla. 3d Dist. Ct. App.

1985)Amica Mut. Ins. Co. v. Gifford, 473 So. 2d 220 (Fla. 5th Dist. Ct. App.

1985)Pennington v. Dye, 456 So. 2d 507 (Fla. 2d Dist. Ct. App. 1984)Andrews v. Continental Ins. Co., 444 So. 2d 479 (Fla. 5th Dist. Ct. App.

1984)Krasnosky v. Meredith, 447 So. 2d 232 (Fla. 1st Dist. Ct. App. 1983)Proprietors Ins. Co. v. Valsecchi, 435 So. 2d 290 (Fla. 3d Dist. Ct. App.

1983)Harris v. Berkowitz, 433 So. 2d 613 (Fla. 3d Dist. Ct. App. 1983)Steele v. Southern Truck Body Corp., 397 So. 2d 1209 (Fla. 2d Dist. Ct.

App. 1981)Decker v. Great Am. Ins. Co., 392 So. 2d 965 (Fla. 2d Dist. Ct. App.

1980)Futch v. Ryder Truck Rental, Inc., 391 So. 2d 808 (Fla. 5th Dist. Ct.

App. 1980)

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Getting Nowhere: Florida's Failed Choice of Law Approach